Mavyuva v Wealth Creator Security Limited (Cause 2067 of 2017) [2023] KEELRC 838 (KLR)
The bottom line
#A Kenyan court ruled that calling a dismissal 'redundancy' without following the legal steps makes it an unfair termination worth compensation.
What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship
Claimant was an employee of the respondent from July 2013 to early 2017, established principally by the NSSF statement
Apart from the NSSF statement identifying the respondent as the claimant's employer from 2013 to 2017, no other evidence connected the claimant to the respondent. The pleaded employment dates of October/November 2012 were not proved. Since the averments were uncontroverted, the court adopted the NSSF dates.
Whether the purported redundancy was lawful
No redundancy occurred; non-compliance with section 40 rendered it an unfair termination
Section 40 prescribes seven mandatory conditions including notice to the employee and the Labour Office, selection criteria and severance pay, plus meaningful consultation. None were complied with, so the May 7, 2017 declaration was in substance a termination of employment rather than a redundancy.
Whether the termination was unfair
Termination was unfair for want of substantive justification and procedural fairness
Sections 43, 45(2) and 47(5) require substantive justification while section 41 and section 45(2)(c) require procedural fairness, including notice and hearing. There was no evidence of compliance with any of these prescriptions, and the claimant was dismissed by word of mouth without notice.
Quantum of compensation
Three months' salary awarded under section 49(1)(c)
The court considered about five years of service, the claimant's non-contribution to the termination, and the fact that he did not appeal the director's decision or show a wish to continue in employment, concluding three months' equivalent salary was fair.
Legal principles established
#- Section 40 of the Employment Act is mandatory; non-compliance converts a purported redundancy into an unlawful termination
- In an undefended claim the claimant must still establish the employment relationship and prove the claim on a balance of probabilities
- Termination must be both substantively justifiable and procedurally fair
Court orders
#- 1.Declaration that termination of the claimant's employment was unfair
- 2.One month's salary in lieu of notice
- 3.Equivalent of 3 months' salary as compensation under section 49(1)(c) of the Employment Act
- 4.Certificate of service
- 5.Costs of the suit to the claimant
- 6.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mavyuva v Wealth Creator Security Limited (Cause 2067 of 2017) [2023] KEELRC 838 (KLR)", Case Analysis (2023). Employment and Labour Relations Claim filed October 16, 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/838/eng@2023-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.